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What is casual employment? Ducks which quack again

“The Collins English Dictionary, Australian Edition, defines the term “casual” to mean:
“1. Happening by accident or choice;
6. occasional or irregular: casual visits: a casual labourer.”
The Concise Oxford Dictionary, 10th Edition, defines “casual” to mean:
“2. Not regular or firmly established – (of a worker) employed on a temporary or irregular basis.”
In Reed v Blue Line Cruises Limited, the Industrial Relations Court of Australia (Moore J) held that:
“A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.
….In my opinion, a casual employee for the purposes of reg 30B is an employee who is, from time to time offered employment for a limited period on the basis that the offer of employment might be accepted or rejected but in circumstances where it could be expected that further employment of the same type would or might be offered and accepted but there was no certainty about the period over which it would continue to be offered.” 73 IR 420 at 425
In Cetin v Ripon Pty Ltd, a Full Bench of the Australian Industrial Relations Commission (AIRC) determined the following:
“[57] In Australian domestic law the words ‘casual employee’ have no settled meaning. The true nature of any employment relationship depends on the facts of each case. As Starke J said in Doyle v Sydney Steel Co. Ltd:
‘The description “casual worker” is not one of precision: it is a colloquial expression, and where, upon all the facts, there is a reasonably debatable question whether the work is casual or regular, the question is one of fact…’
[59] In our view all the facts and circumstances bearing upon the nature of the engagement should be considered in determining the true character of the employment. Consistent with the approach of Moore J in Blue Line Cruises, the informality, uncertainty and irregularity of an engagement supports a conclusion that the employment has the characteristic of being casual. Conversely regular and systematic engagements with a reasonable expectation of continuing employment are usually not characteristic of casual employment.
[61] In the matter before us the parties characterised Ms Cetin’s employment as casual and her employment was classified as casual under the Award. But in our view it would be wrong in principle to treat the character ascribed by an award to particular employment, and adopted by the parties, as conclusively determining the character of the employment for the purpose of regulation 30B(1)(d). Nor is the fact that Ms Cetin was paid a casual loading in lieu of sick leave, annual leave and public holidays determinative of whether or not she was a casual employee for the purpose of regulation 30B(1)(d). Each of these incidents is a consequence of the characterisation chosen by the parties. Rather than being conclusive, each of these matters are simply factors to be taken into account in determining the true character of the employment. As Lee J observed in Gurran v Tarbook Pty Ltd:
‘If parties to an employment contract have attempted in the terms of their contract to describe their relationship in a manner that does not accord with the facts, the relationship established by the facts will prevail.’
[62] Similarly as counsel in Re Porter put it: the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck.” PR9386395
Perry v Nardy House (2016) FWC 73 delivered 6 January 2016 per Riordan C

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